Tripp v. Allcock et al

Filing 12

ORDER granting 9 Motion to Amend and directing service. Signed by U.S. District Judge Karen E. Schreier on 7/13/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN CHRISTOPHER MICHAEL
TRIPP,

4:17-CV-04076-KES

Plaintiff,
vs.
ARTHUR ALLCOCK, Associate Warden;
JENNIFER DRESKE, Deputy Warden;
EUGENE REGIER, Doctor;
ROBERT VESTLIE, Senior Correctional
Officer;
TAMMY TOP, Certified Nurse
Practioner,

ORDER GRANTING MOTION TO
AMEND AND DIRECTING SERVICE

Defendants.
Plaintiff, Kevin Christopher Micheal Tripp, is an inmate at the South
Dakota State Penitentiary in Sioux Falls. On June 1, 2017, Tripp filed a pro se
complaint under 42 U.S.C. § 1983 raising three claims. Docket 1. The court
screened Tripp’s complaint and found that he stated a claim against Robert
Vestlie for deliberate indifference to Tripp’s serious medical needs in violation
of the Eighth Amendment and that Tripp stated a claim against Arthur Allcock
and Jennifer Dreske under the Equal Protection Clause of the Fourteenth
Amendment. Docket 7. The court dismissed Tripp’s second Eighth Amendment
claim because he did not allege that a specific defendant denied his bottom
tier order request. Id. at 4. The court found that Tripp failed to state a claim

against Dr. Regier but granted Tripp leave to amend his complaint if he
wished. Id. at 7.
On June 28, 2017, Tripp filed an amended complaint. Docket 9.
Because the court granted Tripp leave to amend his complaint, the court
construes his amended complaint to include a motion to amend his original
complaint. This motion is granted. The court will now screen the alterations in
Tripp’s amended complaint under 28 U.S.C. § 1915A.1
The only significant changes in Tripp’s amended complaint are to
Count I, the claim the court dismissed because Tripp failed to allege any
action on the part of the named defendants. He alleges the same facts in his
amended complaint as he did in his original complaint: using steps causes
him extreme pain, and he sought an order so that he would be housed on the
bottom tier of the prison. Docket 9 at 5. In his amended complaint, Tripp
alleges that Dr. Eugene Regier, Tammy Top, Allcock, and Dreske all refused to
issue a bottom tier order. Id. The court finds that Tripp states a claim in his
amended complaint against Regier, Top, Allcock and Dreske.
Thus, it is ORDERED
1.

Tripp’s motion to amend (Docket 9) is granted.

2.

The clerks office shall refile Docket 9 as Tripp’s amended complaint.

3.

The Clerk shall send blank summons forms to Tripp so he may
cause the summons and amended complaint to be served upon the
defendants.

The court has already found that Counts II and III, which Tripp does not
significantly amend, survive screening. See Docket 7.
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4.

The United States Marshal shall serve a copy of the amended
complaint (Docket 9), summons, and this order upon defendants as
directed by Tripp. All costs of service shall be advanced by the
United States.

5.

Defendants will serve and file an answer or responsive pleading to
the remaining claims in the amended complaint on or before 21
days following the date of service.

6.

Tripp will serve upon defendants, or, if appearance has been
entered by counsel, upon their counsel, a copy of every further
pleading or other document submitted for consideration by the
court. He will include with the original paper to be filed with the
clerk of court a certificate stating the date and that a true and
correct copy of any document was mailed to defendants or their
counsel.

7.

Tripp will keep the court informed of his current address at all times. All
parties are bound by the Federal Rules of Civil Procedure and by the
court’s Local Rules while this case is pending.

Dated July 13, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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